Com. v. Lord, J. ( 2017 )

J. S31038/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH WILLIAM LORD, : No. 1866 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, November 8, 2016,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0001726-2016
BEFORE: PANELLA, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 14, 2017
Joseph William Lord appeals from the judgment of sentence of
November 8, 2016, following revocation of his probation. We affirm.
The trial court has summarized the history of this case as follows:
Appellant was charged with Simple Assault
(18 Pa.C.S.[A.] § 2701(a)(1), (M2)); Harassment-
Subjecting Another to Physical Contact
(18 Pa.C.S.[A.] § 2709(a)(1), (S)); and Disorderly
Conduct-Hazardous/Physically Offensive Condition
(18 Pa.C.S.[A.] § 5503(a)(4), (M3)) for events
occurring on April 7th, 2016. At his Preliminary
Hearing on April 19th, 2016, Appellant, pro se,
entered a Guilty Plea before Magisterial District
Judge Susan D. Strohmeyer to Count One:
Disorderly Conduct-Hazardous/Physically Offensive
Condition (M3), with all other counts being
withdrawn by the Commonwealth. MDJ Strohmeyer
imposed a sentence of nine (9) months of probation
through the Erie County Office of Adult Probation and
Parole.
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Thereafter, the Erie County Office of Adult
Probation alleged Appellant violated the terms of his
probation, and a Probation Revocation hearing was
scheduled for November 8th, 2016. At said Probation
Revocation hearing, Assistant District Attorney
Michael E. Burns appeared on behalf of the
Commonwealth, and Appellant appeared and was
represented by his counsel, Laurie A. Mikielski, Esq.
Also at the Probation Revocation hearing, Appellant
admitted violating Conditions Seven, Eleven, Twelve
and a Special Condition of his probation. Following
Appellant’s admissions, this Trial Court accepted
Appellant’s admissions and revoked Appellant’s
probationary sentence at Count One on the instant
criminal docket.
Trial court opinion, 1/17/17 at 1-2 (citations to the transcript omitted).
On November 8, 2016, appellant was resentenced to 76 days to 1 year
of incarceration in the Erie County Prison, with credit for time already served
of 76 days. The sentence was made consecutive to any other sentence
appellant was currently serving. Appellant was to comply with probationary
conditions, including drug, alcohol and mental health evaluations and refrain
from using alcohol. On November 18, 2016, the trial court granted appellant
permission to transfer to the Erie County Community Corrections Center for
purposes of work release. On December 7, 2016, appellant was ordered to
be paroled. Also on December 7, 2016, a timely notice of appeal was filed,
together with a statement of intent to file an Anders brief.1 The trial court
filed a Pa.R.A.P. 1925(a) opinion on January 17, 2017.
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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In her Anders brief, appointed counsel, Jessica A. Fiscus, Esq.,
reviewed the following issue before concluding that the instant appeal was
wholly frivolous: “Did the Commonwealth present sufficient evidence to
demonstrate that Appellant committed violations of his probation?” (Anders
brief at 7.)
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
presented with an Anders brief, this court may not review the merits of the
underlying issues without first passing on the request to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
(1) provide a summary of the procedural
history and facts, with citations to the
record;
(2) refer to anything in the record that
counsel believes arguably supports the
appeal;
(3) set forth counsel’s conclusion that the
appeal is frivolous; and
(4) state counsel’s reasons for concluding
that the appeal is frivolous. Counsel
should articulate the relevant facts of
record, controlling case law, and/or
statutes on point that have led to the
conclusion that the appeal is frivolous.
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Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney Fiscus has complied with all of the
above requirements. In addition, Attorney Fiscus served appellant a copy of
the Anders brief and advised him of his right to proceed pro se or hire a
private attorney to raise any additional points he deemed worthy of this
court’s review. (See application to withdraw as counsel, 3/1/17, Exhibit A.)
Appellant has not responded to counsel’s motion to withdraw. As we find
the requirements of Anders and Santiago are met, we will proceed to the
issue on appeal.
The procedures for revoking probation and the rights
afforded to a probationer during revocation
proceedings are well settled:
[w]hen a parolee or probationer is
detained pending a revocation hearing,
due process requires a determination at
a pre-revocation hearing, a Gagnon I
hearing, that probable cause exists to
believe that a violation has been
committed. Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super.
2000) (citing Commonwealth v.
Holmes, 248 Pa.Super. 552, 375 A.2d
379, 381 (1977)). Where a finding of
probable cause is made, a second, more
comprehensive hearing, a Gagnon II
hearing, is required before a final
revocation decision can be made.
Commonwealth v. DeLuca, 275
Pa.Super. 176, 418 A.2d 669, 672
(1980).
The Gagnon II hearing entails two
decisions: first, a “consideration of
whether the facts determined warrant
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revocation.” Morrissey v. Brewer, 408
U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484(1972). “The first step in a Gagnon II
revocation decision . . . involves a wholly
retrospective factual question: whether
the parolee [or probationer] has in fact
acted in violation of one or more
conditions of his parole [or probation].”
Gagnon v. Scarpelli, 411 U.S. 778, 93
S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973)
(citing Morrissey, supra, 408 U.S. at
484, 92 S.Ct. 2593, 33 L.Ed.2d 484). It
is this fact that must be demonstrated by
evidence containing “probative value.”
Commonwealth v. Kates, 452 Pa. 102,
305 A.2d 701 (1973). “Only if it is
determined that the parolee [or
probationer] did violate the conditions
does the second question arise: should
the parolee [or probationer] be
recommitted to prison or should other
steps be taken to protect society and
improve chances of rehabilitation?”
Gagnon v. Scarpelli, supra, 411 U.S.
at 784, 93 S.Ct. 1756, 36 L.Ed.2d 656,
(citing Morrissey v. Brewer, supra,408 U.S. at 484, 92 S.Ct. 2593, 33
L.Ed.2d 484).
Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa.Super. 2009),
quoting Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001)
(brackets in original).
Further, we note that there is a lesser burden of
proof in a Gagnon II hearing than in a criminal trial
because the focus of a violation hearing is “whether
the conduct of the probationer indicates that the
probation has proven to be an effective vehicle to
accomplish rehabilitation and a sufficient deterrent
against future antisocial conduct.” [Sims, 770 A.2d]
at 350 (internal citation omitted). Thus, the
Commonwealth need only prove a violation of
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probation by a preponderance of the evidence. Id.Lastly, hearsay is not admissible at a Gagnon II
hearing absent a finding of good cause for not
allowing confrontation. Commonwealth v.
Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128,
1130-31 (1984).
Allshouse, 969 A.2d at 1241.
Instantly, appellant admitted to violating several conditions of his
probation, including smoking marijuana, consuming alcohol, failing to meet
with his probation officer, and failing to follow through with mental health
treatment. (Notes of testimony, 11/8/16 at 9-10.) Appellant failed to report
to probation on May 12, May 20, June 28, and August 29 of 2016. (Id. at
10.) Appellant also signed a “violation admission statement” dated
October 7, 2016, in which he admitted violating conditions 7, 11, and 12 of
his probation, as well as a special condition (no alcohol use). (Trial court
opinion, 1/17/17, Exhibit B; docket #12.)
At the revocation hearing, appellant conceded that, “I guess I
shouldn’t have messed that up.” (Notes of testimony, 11/8/16 at 14.)
Appellant testified that, “I wish I could take it all back. I was almost off of
probation.” (Id.) Appellant complained that the Stairways program was not
helping him. (Id.) However, as the trial court observed, “[T]he Court
ordered you into Stairways. You don’t get to decide that you don’t like a
program or not. You have to go.” (Id. at 15.) Appellant also claimed that
he missed appointments because he lived outside of town and it was hard to
find a dependable ride. (Id.) However, his probation officer, Angela Brooks,
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testified that appellant lives on a bus line and the probation office provides
bus passes. (Id. at 17.) Clearly, the Commonwealth established by a
preponderance of the evidence that appellant was in violation of the terms
and conditions of his probation and that revocation was appropriate.
For the reasons discussed above, we determine that appellant’s issue
on appeal is wholly frivolous and without merit. Furthermore, after our own
independent review of the record, we are unable to discern any additional
issues of arguable merit. Therefore, we will grant Attorney Fiscus’s petition
to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
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